SUKUMARAN v. PADMALOCHANAN C.G. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936 WP(C).No. 22385 of 2012 (W) ---------------------------- PETITIONER(S): -------------SUKUMARAN, AGED 59 YEARS S/O. LATE KUNJAN ACHARI, ELAVUMTHANATH HOUSE, KANAKKARY.P.O, KOLLAM. BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENT(S): -------------- 1. PADMALOCHANAN C.G. S/O.C.N. GOPALAN, CHETTICKAL HOUSE, KANAKKARI VILLAGE, KOTTAYAM - 686 632. 2. THE KANAKKARI GRAMA PANCHAYATH OFFICE OF THE KANAKKARI GRAMA PANCHAYATH VEMPALLY.P.O, KOTTAYAM - 686 633 REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, KANAKKARI GRAMA PANCHAYATH OFFICE OF THE KANAKKARI GRAMA PANCHAYATH VEMPALLY.P.O, KOTTAYAM - 686 633. 4. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, NAGAMPADOM, KOTTAYAM- 686001. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. R2 & R3 BY ADV. SRI.RAJEEV V.KURUP R1 BY ADV. SRI.S.SUBHASH CHAND R4 BY ADV.SRI. M.AJAY,SC,KERALA STATE POLLUTION CONTROL BOARD R BY GOVERNMENT PLEADER SRI M.A.ABDUL SHUKOOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2014 ALONG WITH WPC. 16388/2013, RP. 363/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22385 of 2012 (W) **A P P E N D I X** PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE LICENSE DT.1.7.11 ISSUED BY THE 2ND RESPONDENT PANCHAYAT. EXT.P2: TRUE COPY OF THE COMPLAINT DT.21.2.11 SUBMTTED BY THE PETITIONER. EXT.P3: TRUE COPY OF THE ANOTHER COMPLAINT DT.15.7.11 SUBMITTED BY THE PETITIONER. EXT.P4: TRUE COPY OF THE CONSENT TO ESTABLISH DT.9.3.11. EXT.P5: TRUE COPY OF THE CATEGORIZATION MADE BY THE STATE GOVERNMENT. EXT.P6: TRUE COPY OF THE PLAN SUBMITTED BY THE 1ST RESPONDENT BEFORE THE POLLUTION CONTROL BOARD. EXT.P7: TRUE COPY OF THE SHOW CAUSE NOTICE DT.10.8.11 ISSUED TO THE 1ST RESPONDENT. EXT.P8: TRUE COPY OF THE LETTER DT.10.8.11. EXT.P9: TRUE COPY OF THE DECISION OF THE PANCHAYAT DT.25.2.12. EXT.P10: TRUE COPY OF THE CONSENT TO OPERATE DT.21.6.12 ISSUED BY THE POLLUTION CONTROL BOARD TO THE 1ST RESPONDENT UNIT. EXT.P11: TRUE COPY OF THE PLAN SUBMITTED BY THE 1ST RESPONDENT. EXT.P12: TRUE COPY OF THE DECISION DT.31.7.12 OF THE 2ND RESPONDENT PANCHAYAT. EXT.P13: TRUE COPY OF THE JUDGMENT DT.16.7.12 IN WPC.NO.15607 OF 2012. ## 1ST RESPONDENTS' EXHIBITS EXT.R1(a): TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY RESPONDENT NO.4. EXT.R1(b): TRUE COPY OF THE APPLICATION FOR LICENCE DATED 17.06.2011 SUBMITTED BEFORE RESPONDENT NOS.2 & 3. EXT.R1(c): TRUE COPY OF THE CERTIFICATE ISSUED BY RESPONDENT NO.1. EXT.R1(d): TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, KOTTAYAM. EXT.R1(e): TRUE COPY OF THE NO OBJECTION CERTIFICATE BY THE DISTRICT MEDICAL OFFICER, KOTTAYAM. EXT.R1(f): TRUE COPY OF THE RESOLUTION BEARING NO.XIX DATED 22.6.11 PASSED BY RESPONDENT NO.3. WP(C).No. 22385 of 2012 (W) :2: EXT.R1(g): TRUE COPY OF THE LICENCE DT.1.7.11 ISSUED BY RESPONDENT NO.3. EXT.R1(h): TRUE COPY OF THE COMMUNICATION DT.25.10.11 ISSUED BY RESPONDENT NO.4 PERMITTING TRIAL RUN IN THE UNIT OF THE PETITIONER. EXT.R1(i): TRUE COPY OF THE COMMUNICATION DATED 13.11.11 ISSUED BY RESPONDENT NO.3. EXT.R1(j): TRUE COPY OF THE COMMUNICATION DATED 26.11.11 ISSUED BY RESPONDENT NO.3 WITHOUT NOTICE AND WITHOUT HEARING THE PETITIONER. EXT.R1(k): TRUE COPY OF THE ORDER DT.25.2.12 PASSED BY RESPONDENT NO.3 UNDER SECTION 233A(3) OF THE KERALA PANCHAYAT RAJ ACT, 1994. EXT.R1(l): TRUE COPY OF THE COMMUNICATION DT.14.5.11 ISSUED BY RESPONDENT NO.3. EXT.R1(m): TRUE COPY OF THE JUDGMENT DATED 29.5.12 PASSED BY THIS COURT IN WPC NO.25686/11. EXT.R1(n): TRUE COPY OF THE CONSENT TO OPERATE DT.21.6.12 ISSUED BY RESPONDENT NO.4. EXT.R1(o): TRUE COPY OF THE JUDGMENT DT.16.7.12 PASSED BY THIS COURT IN WPC.NO.15607/12(A). EXT.R1(p): TRUE COPY OF THE COMMUNICATION DT.31.7.12 ISSUED BY RESPONDENT NO.3. EXT.R1(q): TRUE COPY OF THE RECEIPT NO.24 DT.1.8.12 ISSUED BY RESPONDENT NO.3. EXT.R1(r): TRUE COPY OF THE LICENCE DT.1.8.12 ISSUED BY RESPONDENT NO.3. EXT.R1(s): TRUE COPY OF THE CIRCULAR DT.21.7.03 ISSUED BY THE MEMBER SECRETARY, KERALA STATE POLLUTION CONTROL BOIARD. EXT.R1(t): TRUE COPY OF THE CIRCULAR DT.9.8.04 ISSUED BY THE MEMBER SECRETARY, KERALA STATE POLLUTION CONTROL BOARD. EXT.R1(u): TRUE COPY OF THE CIRCULAR DT.20.7.11 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.R1(v): TRUE COPY OF THE REPORT DT.6.2.12 SUBMITTED BY RESPONDENT NO.4 BEFORE THIS COURT IN WPC NO.25686/11. EXT.R1(w): TRUE COPY OF THE REPORTS DT.6.3.12 SUBMITTED BY RESPONDENT NO.4 BEFORE THIS COURT IN WPC.NO.25686/11. ## 4TH RESPONDENT'S EXHIBITS ANNEXURE-R4(1): TRUE COPY OF THE DIRECTION ISSUED BY THE CHIEF ENVIRONMENTAL ENGINEER. /TRUE COPY/ P.S TO JUDGE ## **K.SURENDRA MOHAN, J.** **----------------------------------------------------W.P(c) No.22385 of 2012-W, W.P(c) No.16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013 ---------------------------------------------------Dated this the 26[th] March, 2014** ## **J U D G M E N T** The dispute in these cases centre around an industrial unit manufacturing Hollow bricks using cement. W.P(c) No.22385 of 2012 and W.P(c) No.16388 of 2013 are filed by the very same petitioner who is residing close to the industrial unit. According to the petitioner, the functioning of the unit causes both sound pollution as well as air pollution rendering the life of the petitioner and the other nearby residents, insufferable. He had been objecting to the grant of licence to the factory, from the very inception. However, the allegation is that, without considering his objections in the proper perspective and in gross violation of the provisions of law, licence has been granted by the 2 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** Panchayat and consent to establish and operate the unit has been granted by the Kerala State Pollution Control Board. The petitioner filed W.P(c) No.22385 of 2012 challenging the consent to establish Ext.P4, the consent to operate Ext.P10 and Ext.P12 decision of the Panchayat to renew the licence in respect of the unit. 2. W.P(c) No.1638 of 2013 is a Writ Petition filed by the very same petitioner through another counsel, during the pendency of the earlier Writ Petition challenging Ext.P4 proceedings, by which the Panchayat has renewed the licence in respect of the industrial unit. The unit is situate within the local limits of the Kanakkari Grama Panchayat. 3. The petitioner had filed yet another Writ Petition W.P(c) No.9760 of 2013 seeking a direction to consider a representation submitted by him against renewing the licence in respect of the industrial unit and further seeking the issue of a writ of mandamus directing the Panchayat not to renew the licence in respect of the unit. The said Writ **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 3 Petition was disposed of by me by judgment dated 08.04.2013, directing the representation to be considered within a period of one month of the date of receipt of a copy of the judgment after hearing the person conducting the industrial unit also. However, when the petitioner produced the said judgment before the Panchayat, the Secretary issued a stop memo directing the industrial unit to stop functioning until the question of renewal of its licence was decided. In view of the said development, Review Petition No.363 of 2013 has been filed by the 4[th] respondent in the Writ Petition, the person who is conducting the industry, seeking a review of the judgment. As per an interim order dated 03.05.2013, the stop memo issued by the Secretary of the Panchayat has been stayed. The said interim order is in force. 4. Since the Writ Petitions as well as a Review Petition relate to objections against functioning of the very same industrial unit, these cases have been heard together **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 4 and are also being disposed of together. W.P(c) No.22385 of 2012 is treated as the leading case and the parties and the documents produced are referred to in the manner in which they are described in the said Writ Petition. 5. As already noticed above, the basic facts are not in dispute. The petitioner is the owner of an extent of 10 cents of land within the limits of Kanakkari Grama Panchayat. He is a retired person who has constructed a residential building of his own property and is residing there with his family. The 1[st] respondent purchased the neighbouring property admeasuring 20 cents in extent on the southern side of his house and applied for the grant of permission to start a Hollow brick manufacturing unit. On coming to know of the application, the petitioner had submitted objections. In spite of the above, the 1[st] respondent was issued with Ext.P1 licence on 01.07.2011 by the Panchayat. Therefore the petitioner complained to the Deputy Director of Panchayats by submitting Ext.P3 dated 5 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 15.07.2011. It is not in dispute that, the 1[st] respondent has also been issued with Ext.P4 consent to establish on 09.03.2011 by the Kerala State Pollution Control Board and Ext.P10 consent to operate on 21.06.2012. As per Ext.P12 dated 31.07.2012, the Panchayat decided to renew the licence of the 1[st] respondent. The said proceedings are also under challenge in these Writ Petitions. 6. A detailed counter affidavit has been filed by the 1[st] respondent producing a number of documents. A separate counter affidavit has been filed by the learned counsel for respondents 2 and 3. The 4[th] respondent, Environmental Engineer of the Pollution Control Board, has placed on board a report and an additional report after inspecting the industrial unit. The petitioner has filed a reply affidavit. 7. I have heard Senior counsel Sri N.N.Sugunapalan, who appears for the petitioner in this Writ Petition, Sri Santhan V.Nair, who appears for the very same petitioner in **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 6 W.P(c) No.16388 of 2013 and the 1[st] respondent in the Review Petition - R.P.No.360 of 2013, Advocate S.Subhashchand, who appears for the 1[st] respondent, in this Writ Petition and the petitioner in the Review Petition, Advoate Rajeev P.Kurup, who appears for respondents 2 and 3, Advocate M.Ajay, who appears for the 4[th] respondent as well as the learned Government Pleader, who appears for the State, at length. I have been taken through the various documents produced, the provisions of law on which the parties rely, as well as the judgments on the basis of which the contentions have been advanced by the respective counsel. I have considered the contentions anxiously. 8. A preliminary objection has been raised by the learned counsel for the 1[st] respondent Sri S.Subhashchand, on the basis of Exts.R1(m) judgment of this Court in an earlier Writ Petition filed by the very same petitioner. The petitioner had earlier filed W.P(c) No.25686 of 2011, wherein, according to the learned counsel for the 1[st] **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 7 respondent, the reliefs extracted in para.5 of the 1[st] respondent's counter affidavit had been sought for. The first relief that has been extracted was to interdict the operation of the Hollow brick manufacturing unit without obtaining a consent to operate from the Pollution Control Board. The second relief was a direction to cancel the consent to establish that was granted to the 1[st] respondent. The issue of a Writ of mandamus directing the Secretary of the Grama Panchayat to conduct an inspection of the unit and other ancillary reliefs were sought for. By Ext.R1(m), the Writ Petition was dismissed as withdrawn. It is pointed out that since no liberty was reserved in favour of the petitioner to file a fresh Writ Petition before this Court seeking identical reliefs, the present Writ Petition is not maintainable. I notice that in the earlier Writ Petition also what was under challenge was the consent to establish, Ext.P2. However, it appears that the consent to operate had not been granted to the 1[st] respondent at that time. **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 8 Therefore Ext.P10 was not the subject matter of the said Writ Petition. It is true that the Writ Petition was dismissed as withdrawn without reserving the liberty of the petitioner to approach this court again on the same cause of action. It is contended, placing reliance on the judgment of this Court in **Narayanan Achari v. State of Kerala** [1999(1) KLT 766], that this Court has in similar circumstances held that a Writ Petition was not maintainable, for having got an earlier Writ Petition dismissed as withdrawn without reserving any liberty. However, the scope of the present Writ Petition is wider than the one that was earlier got dismissed as withdrawn. This is for the reason that the petitioner has in this case challenged Ext.P10, the consent to operate, that has been granted to the 1[st] respondent as well as the licence that has been granted to him. The cause of action to challenge the said documents cannot be said to have been existing at the time when Ext.R1(m) judgment was passed. Therefore, I am not satisfied that this Writ 9 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** Petition is liable to be dismissed on the said ground. 9. Another contention that is advanced by the learned counsel for the petitioner is that in view of the coming into force of the National Green Tribunal Act, 2010, that has established the Green Tribunal, this is a matter that should be adjudicated by the said Tribunal. It is pointed out that the issue in the present litigation also relates to the alleged pollution that is caused by the industrial unit which is conducted by the 1[st] respondent. Therefore, this is a matter that requires to be transferred to the National Green Tribunal for being adjudicated by the said specialised Tribunal. Reliance is placed on the decision of the apex Court in **Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India** [(2012) 8 SCC 326], where the Honourable Supreme Court has directed as follows: “40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short “the NGT Act”) particularly Sections 14, **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 10 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short “NGT”. Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned.” 10. Therefore, it has to be considered whether the dispute in the present case involves a matter that is to be exclusively considered by the Tribunal constituted under **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 11 Section 14 of the National Green Tribunal Act, 2010. Section 14(1) of the said Act provides that the Tribunal shall have the jurisdiction over all civil cases “where a substantial question relating to environment” is involved. Therefore, it is necessary for a substantial question relating to the environment to exist, in order to attract the jurisdiction of the Green Tribunal under Section 14 of the Act. In the present case, it is true that the consent to establish Ext.P4, as well as the consent to operate Ext.P10, have been issued under the Environment (Protection) Act, 1986. It is also true that Schedule 1 of the National Green Tribunal Act, that lists the enactments with respect to which jurisdiction has been conferred on the Green Tribunal, mentions the Environment (Protection) Act, 1986 also. The Air (Prevention & Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 19.. are also enactments that are mentioned in the said schedule. However, the issue in this case cannot be said to 12 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** be one purely relating to those enactments. This is for the reason that, the licences that are issued by the Panchayat under the provisions of the Kerala Panchayat Raj Act, 1994, are also under challenge in these cases. Though allegations of pollution are raised, the main attack is on the manner in which the power under these enactments have been exercised by the authorities. Therefore, the substantial question that arises for determination here is whether the exercise of power under these enactments by the statutory authorities are justified or not. No substantial question relating to the environment has been raised in these cases. Therefore, I am of opinion that these cases are not necessary to be transferred to the Tribunal constituted under Section 14 of the National Green Tribunal Act, 2010. 11. According to the learned Senior Counsel Sri N.N.Sugunapalan, who appears for the petitioner, in Ext.P1 licence issued by the Panchayat on 01.07.2011, permission has been granted to install a Motor having 13 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 13 H.P power. It is contended that the Panchayat does not have the power to grant permission to install motors with power in excess of 5 HP. Reliance is placed on Sub Rule 3 (d), of Rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as `the D & O Rules', to contend that the power of the Secretary has been limited to the grant of permission to machinery having capacity less than 5 HP. In view of the above, Ext.P1 is stated to be unsustainable. 12. Advocate S.Subhashchand, who appears for the 1[st] respondent, meets the above contention by pointing out that the licence to his client was not granted by the Secretary, but, by the Village Panchayat by Ext.R1(f) resolution dated 22.06.2011. As per the said resolution, the Panchayat has considered the application for licence submitted by the 1[st] respondent, has decided to grant the licence and has authorised the Secretary to issue the **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 14 licence. It was pursuant to the said decision that, the licence has been issued to the 1[st] respondent. The Village Panchayat is authorised to issue licence to install a 13 HP Motor also. 13. Rule 12(3) of the D & O Rules reads as follows: “12. Application to be made for constructing or establishing factory, workshop or workplace wherein steam power or other power is to be used:- (1) ........................ (2) ....................... (3) The Village Panchayat shall, as soon as may be after the receipt of the application, within 45 days in the case of obtaining no objection certificate from other establishments and within 30 days in other cases, -- (a) grant the permission applied for either absolutely or subject to such condition as it thinks fit to impose, or (b) refuse permission, if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood or that it is 15 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** likely to cause nuisance; or (c) where the application has not been disposed of within the specified time, licence shall be deemed to have been issued; or (d) the Secretary shall, in the case of factories, industrial establishments etc. with machinery having capacity of less than 5 horse power and not causing pollution after accepting the fee for licence, without the no objection certificate of another establishments or the special permission of the Village Panchayat, issue licence.” 14. An examination of the above provision shows that sub clauses a, b and c thereof deal with the powers of the Village Panchayat. Therefore, the Village Panchayat is empowered by the said provision on the receipt of an application stipulated by sub rule 1 of Rule 12 to grant the permission applied for either absolutely or subject to such conditions as it may think fit to impose or to refuse permission if it is of opinion that such construction or establishment is objectionable by reason of high density of 16 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** population in the neighbourhood or that it is likely to cause nuisance. The above provisions do not contain any restriction on the powers of the Village Panchayat to grant or refuse the licence. 15. Sub clause (d) of sub Rule 3 of Rule 12 on the other hand deals exclusively with the power that is conferred on the Secretary of the Panchayat to grant or refuse a similar licence. The power of the Secretary of the Panchayat is confined to factories or industrial establishments with machinery having capacity less than 5 HP and not causing pollution. Therefore, the power of the Secretary alone is limited by the capacity of the machinery that is proposed to be used, having less than 5 HP. In the present case, the resolution of the Panchayat, Ext.R1(f) is seen to have been adopted on 22.06.2011. As per the said resolution, the Panchayat has decided to grant licence to the 1[st] respondent's manufacturing unit and has also decided to authorise the Secretary to issue the licence. It is **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 17 accordingly that, Ext.P1 licence was issued on 1.7.2011. Therefore, it is held that Ext.P1 does not suffer from any infirmity as pointed out by the learned Senior Counsel. 16. Another contention raised by the learned Senior Counsel Sri N.N.Sugunapalan is that, Ext.P4, the consent to establish granted to the 1[st] respondent has categorised the activity of the 1[st] respondent as `Green'. By Ext.P5, Water (Prevention and Control of Pollution) Amendment Rules, 2002, dated 21.10.2002, the categorisation of various industries has been changed and in schedule II, Brick manufacturing has been listed as coming under the `Orange' category. Depending on the category in which a particular industry has been included, the distance to be maintained from the neighbouring houses would vary. Thus, in the case of less polluting industries that are included in the `Green' category, permission to locate them closer to residential houses could be granted. On the other hand, in the case of industries included in the other categories like **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 18 `Orange' and `Red', the distance stipulated from residential houses is more. Since the amendments were effected before the grant of Ext.P4 consent on 09.03.2011, it is contended that the said consent, granted on the erroneous assumption that the industry belonged to the `Green' category, was unsustainable and liable to be set aside. It is also pointed out by the learned Senior Counsel that Ext.P6 location plan on the basis of which Ext.P4 was granted, has only marked the positions of the houses in the locality, without indicating the distance from them to the manufacturing unit. My attention is drawn to Ext.P10 consent to operate, to point out that the category of the industry is correctly shown as `Orange' therein. The capacity of the machinery for which consent to operate has been granted to the 1[st] respondent is also pointed out to be only for a machine having 5 HP capacity and a Hydrolic block machine having 5.5 HP capacity adding up to a total of 10.5 HP. At the same time, in Ext.P1, licence has been 19 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** granted for machinery having 13 HP by the Panchayat. Sri Santhan V.Nair, Advocate, has drawn my attention to Ext.R1(b) to point out that on an inspection by the Panchayat authorities, a 13 HP Motor was found to be installed and in use in the establishment of the 1[st] respondent. Therefore, it is contended that, with the connivance of the authorities, a Motor having 13 HP was being employed in the manufacturing process causing hardships and nuisance to the petitioner. 17. According to Sri S.Subhashchand, the learned counsel for the 1[st] respondent, as on the date of issue of Ext.P4, the consent to establish, it was Ext.R1(t) Circular dated 09.08.2004 that was in force. It is contended by the learned counsel that, Ext.P5 amendments have no application to the manufacture of cement Hollow bricks. What has been referred to in Ext.P5 is `Brick Manufacturing', which is different. As per Ext.R1(s) Circular dated 21.07.2003, `Cement and Concrete Products' **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 20 have been categorised as `Green'. The minimum distance to be maintained from residential houses for industries in the `Green' category as per Ext.R1(t) Circular was only 3 meters. It was for the said reason that the consent to establish has shown the 1[st] respondent's industry as coming within the category, `Green'. As per Ext.R1(u) Circular, the minimum distance to residences has been enhanced to 25 meters. But, the said Circular has been given retrospective effect only from 1.7.11. The petitioner having been granted a licence by the Panchayat by Ext.R1(f) on 22.06.11, the said Circular has no application to his industry. It is also pointed out with reference to the sketch that is part of Ext.R1(n) that the distance to the petitioner's residence was 12 meters. The 1[st] respondent is also staying nearby, at a distance of 18 meters, it is pointed out. 18. As already noticed above, the Panchayat resolution to grant licence to the 1[st] respondent was taken as per Ext.R1(f), on 22.06.2011. Ext.P1 is only the licence **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 21 that was formally issued by the Secretary pursuant to Ext.R1(f). As rightly contended by the learned counsel for the 1[st] respondent, there is no categorisation in Ext.P5 relating to cement products. Brick manufacturing that is seen mentioned in the said document cannot be held to include manufacture of cement products also. This is for the reason that, cement block making has been dealt with in the Circular dated 20.07.11, separately. It cannot be disputed that, the pollution potential of the cement brick making activity is considerably less. As per the Circular Ext.R1(t), even if the 1[st] respondent's industry is considered to be in the `Orange' category, the distance stipulated in it is only 10 meters, which is available in the present case. It is true that the requirement of minimum distance from residential houses had been enhanced to 25 meters by Ext.R1(u) Circular. However, the Circular also orders as follows: “ The new norms will have retrospective **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 22 effect from 1[st] July 2011. All pending applications, pending as on 30.06.2011, shall be cleared following the then existing norms.” 19. In the present case, the 1[st] respondent had been granted Ext.P4 consent to establish on 09.03.2011 long before the date stipulated by the Circular referred to above. On the basis of Ext.P4, the 1[st] respondent had also established his unit. Therefore, it was not possible for the 1[st] respondent to be directed to comply with the distance rule, after his factory was constructed. The requirement regarding the distance could have been insisted upon before the consent to establish his unit was issued. Once a person has acted on the consent and established his factory in accordance with the consent to establish, he cannot be directed to comply with the distance rule on the ground that there was a change in the rules applicable. In the case of the 1[st] respondent, the consent to establish having already been granted, what remained was only to grant him a **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 23 consent to operate. The consent to operate has been granted by Ext.P10 treating the industry to be one belonging to the `Orange' category. The above being the position, I do not find any infirmity in the consent granted to the 1[st] respondent, as alleged. Therefore, the contention on the above basis has to fail. 20. The next contention advanced on the part of the petitioner is that, the functioning of the unit of the 1[st] respondent was found to cause acute nuisance and hardships to the petitioner and other neighbouring residents of the Panchayat. It was also found that the distance mentioned by the 1[st] respondent while seeking permission to construct the factory building was not correct. Therefore, as per Ext.P7, the Environmental Engineer asked him to show cause why action should not be taken against him. As per Ext.P8 dated 10.08.11, the Environmental Engineer also directed the 1[st] respondent not to function his unit without obtaining consent to operate **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 24 from the Pollution Control Board. The petitioner has in W.P (c) No.16388 of 2013 produced Ext.P8 memo issued by the 1[st] respondent Panchayat directing the 1[st] respondent not to function his unit. As per Ext.P9 in the said Writ Petition, he was also directed after conducting an inspection, to install sprinklers to water the materials that are brought to his premises, so as to prevent the dust from spreading and causing atmospheric pollution. He was further directed to install dust proof net to a height of 10 meters. Inasmuch as the Pollution Control Board had granted permission to the 1[st] respondent only to use machinery having a total capacity of 10.5 HP, he was also directed to produce the necessary consent from the Pollution Control Board to use a 13 HP motor. In spite of issuing the above proceedings, according to Sri Santhan V.Nair, the learned counsel for the petitioner appearing in W.P(c) No.16388 of 2013, the Panchayat has renewed the 1[st] respondent's licence. Therefore he has challenged the said decision in the Writ Petition. Such a **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 25 licence has been granted on extraneous consideration, it is alleged. Therefore, he seeks the issue of appropriate orders quashing the same. 21. A serious objection is raised by Sri Santhan V.Nair, the counsel for the petitioner, pointing out that, Ext.P13(10) copy of the application for renewal of licence submitted by the 1[st] respondent is dated 18.05.2013. The licence was renewed as per the proceedings of the Secretary of the Panchayat, Ext.P11 which is also dated 18.05.13. The licence of the 1[st] respondent has been renewed on the basis of a resolution that was adopted by the Panchayat Committee that met on 14.05.13. It is clear from the above that, the application submitted by the 1[st] respondent on 18.05.13 was granted on the very same day, on the basis of a Panchayat decision that was taken on 14.05.13, long prior to even submission of the application for licence. Therefore, it is contended that Ext.P11 is liable to be set aside for non application of mind. **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 26 22. Advocate S.Subhashchand meets the above contention by pointing out that, the 1[st] respondent (the 4[th] respondent in W.P(c) No.16388 of 2013) had been granted a licence as early as on 1.7.11. He had only sought for a renewal of the said licence. An application for renewal of licence had to be submitted before the term of the earlier licence expired on 31.03.2013. Accordingly, the 1[st] respondent had applied for the issue of a licence much earlier. Though the said application has not been produced, it is pointed out that reference to the said application has been made in Ext.P10 communication of the Panchayat on 5.4.13, produced in W.P(c) No.16388 of 2013. The said document refers to his application for renewal of licence dated 14.3.13. Therefore, it is contended that, it was on his application for renewal dated 14.3.13, that the Panchayat Committee had taken a decision on 14.5.13. It is the said decision on the basis of which Ext.P11 proceedings have been issued by the Secretary of the Panchayat. Ext.P13 was **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 27 an application that was submitted much later when no orders were forthcoming on his earlier application. For the above reasons, it is contended that no discrepancy as pointed out by the counsel for the petitioner exists. 23. I have gone through Ext.P10 communication issued by the Secretary directing the 1[st] respondent to produce consent from the Pollution Control Board to work motor having 13 HP capacity. He has been informed that unless he produces such a consent, his application for renewal would not be considered. The said communication has shown the application of the 1[st] respondent dated 14.3.13 as reference. Therefore, it appears that an application was submitted by the 1[st] respondent on 14.3.13. Since Rule 10 of the D & O Rules stipulates applications for renewal of licences to be submitted 30 days before expiry of the period of licence, it is only probable that the 1[st] respondent had submitted his application for renewal within the prescribed time. Therefore, I find that the objections **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 28 raised by the learned counsel for the petitioner are without any basis. 24. As per Ext.P7 judgment dated 8.4.13, the Panchayat was directed to consider the objections of the petitioner also before taking a final decision on the application for renewal of licence submitted by the 1[st] respondent. A perusal of Ext.P11 shows that, the petitioner was heard on 8.5.13. Thereafter, an inspection of the 1[st] respondent's unit was conducted on 13.5.13. The inspection was conducted by the Panchayat Secretary, the Assistant Secretary, an Upper Division Clerk of the Panchayat, the Health Inspector and others. They have not noted any defect in the establishment. The only suggestion made by them is to water the blocks before unloading them and to enclose the premises using dust proof net. A reading of Ext.P11 further shows that the Pollution Control Board had been addressed by the Panchayat on the question of renewal of the licence and that the, said **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 29 authority had expressed the opinion that the licence could be renewed. It was after the hearing that the Panchayat Committee had considered the application on 14.05.13 and taken a decision to renew the licence. As per Ext.P11, the Secretary has only issued the consequential proceedings. I am not satisfied that Ext.P11 suffers from any infirmity justifying an interference with the same. 25. The other contention that remains to be considered is whether the unit of the 1[st] respondent is causing nuisance and pollution, as alleged. According to the learned counsel appearing for the petitioner, the petitioner's residential house is situate close to the industrial unit. The petitioner who is a retired person is suffering from breathing difficulties as well as other ailments because of the dust and sound emanating from the unit. It is alleged that on an inspection by the Pollution Control Board, it has been found that the sound emanating from the unit of the 1[st] respondent was 61.8 dBA. The 30 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** intensity of the sound that has been detected is, according to the counsel, much higher than the permissible limits. Consequently, the petitioner is constantly under the threat of serious health hazards. It is contended that the authorities are only aiding the 1[st] respondent by not taking any effective action against his activity. The Pollution Control Board has permitted the installation of only 2 motors having 5 HP and 5.5 HP capacity. It is contended that a single motor having 13 HP power has already been installed. The same is also being operated, at considerable discomfort to the petitioner and other local residents. Neither the Panchayat nor the Pollution Control Board have taken an effort to ascertain the capacity of the motor that has been installed. My attention is drawn to Ext.R1(b) application for licence on which, on the second page thereof the Lower Division Clerk of the Panchayat has after an inspection of the unit, recorded that, a 13 HP motor has not only been installed but was also being used. Reliance is **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 31 placed on Exts.P7 and P8 to show that the 1[st] respondent had started the functioning of his unit even without obtaining the necessary licence from the Panchayat or the consent from the Pollution Control Board. Thereafter, he had been directed by the Panchayat not to function the unit without obtaining consent to operate from the Pollution Control Board, as per Ext.P9 dated 25.02.2012. The said proceedings were under challenge before this Court in W.P(c) No.15607 of 2012 filed by him. He had filed the said Writ Petition without making the petitioner a party to the same. The said Writ Petition was disposed of by this Court by Ext.P13 judgment, permitting the petitioner therein (1[st] respondent herein) to function his unit since he had been granted a consent to operate by the Pollution Control Board. Therefore, the petitioner herein has sought for a review of the said judgment, which petition is still pending. Since the unit is causing pollution and nuisance to the residents of the locality, it is contended that the same is 32 ## **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** liable to be closed down. 26. According to Sri S.Subhashchand who appears for the 1[st] respondent, it is the petitioner who has been harassing the 1[st] respondent ever since he started the industrial unit by filing complaints to various authorities against the establishment. Writ Petitions have been filed before this Court on a number of occasions, apart from the proceedings initiated before other statutory authorities. Therefore, it is contended that there is absolutely no bonafides in the allegations of the petitioner. The unit of the 1[st] respondent had, pursuant to the complaint of the petitioner, been directed to conduct a trial run for a considerably long period of time. The Pollution Control Board had monitored the functioning of the unit during the said period, to ascertain whether there was any pollution or nuisance. On being satisfied that no pollution was being caused, the consent to operate has been granted. Though on an earlier measurement, the sound levels were found to **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 33 be excessive, after incorporating the modifications suggested by the Pollution Control Board, the unit has been certified to be pollution free. The report submitted by the Pollution Control Board before this Court is relied upon to support the above contention. It is therefore contended that the allegations of the petitioner are without any basis and liable to be rejected. 27. As per Ext.P1, it can be seen that the 1[st] respondent was granted a licence to operate a motor having 13 HP. However, the consent to operate Ext.P10 shows that only permission to operate a mixing machine having 5 HP capacity and a hydrolic block machine having 5.5 HP capacity have been permitted to be installed. Ext.R1(b) however shows that, a Lower Division Clerk of the Panchayat had, after an inspection of the 1[st] respondent's unit, made a noting therein, recording that a motor having 13 HP capacity was installed there and that the same was under use. However, as per Ext.P10 consent to operate, **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 34 only 2 items of machinery having 5 HP and 5.5 HP capacities were permitted to be operated. There is no explanation for the above discrepancy. As a result, it is not clear, whether a motor having 13 HP capacity is being used in addition to the 2 sanctioned items of machineries having 5 HP and 5.5 HP capacities respectively. If the motor having 13 HP capacity is being used in addition to the 2 items of machinery for which permission has been granted as per Ext.P10, then there cannot be any doubt that use of the said machinery is unauthorised. In such an event, the total capacity of the machinery used in the unit would come to 23.5 HP. The authorities do not appear to have taken note of the above. They have also not bothered to verify the capacity of the machinery installed, in order to ascertain whether the capacity was within the permissible limit. Therefore, it is absolutely necessary that the authorities address the above aspect of the matter. 26. The respective counsel appearing for the **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 35 petitioner in these Writ Petitions have vehemently put forward their contentions regarding the pollution that is emanating from the functioning of the unit. However, a first hand assessment of the situation that is faced by the petitioner and other local residents is not possible, within the limits of the summary jurisdiction exercised by me under Article 226 of the Constitution. This Court is also not technically competent to undertake such an assessment or evaluation. The Pollution Control Board is the statutorily empowered authority competent to make such an assessment. The Pollution Control Board is also technically qualified to conduct such an evaluation. In the present case, on complaints of pollution being raised, the Pollution Control Board had directed the conduct of a trial run. The Environmental Engineer, Pollution Control Board, has submitted a report in this case dated 18.12.2012. According to the report, the consent to operate was granted after duly considering the complaint of the petitioner and **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 36 after conducting an inspection of the factory of the 1[st] respondent. The aspect of noise pollution was also considered after monitoring the noise levels. Since the noise levels were found to exceed the permissible limits, the 1[st] respondent was directed to provide additional safeguards. Thereafter, the issue of a formal consent was kept in abeyance and the unit was directed to conduct a trial run for 3 months. Thus, a trial run was conducted from 1.11.11 to 31.1.12. During the period, the noise levels as well as the nuisance to the residents of the locality were assessed. It was found that the noise levels had, consequent to the remedial measures adopted, been reduced to the permissible limits. As per Annexure-R1 produced along with the report, some additional measures were also directed to be put in place. The entire area was directed to be enclosed and wetting arrangements were directed to be made to prevent dust pollution. The 1[st] respondent has installed sprinklers and has enclosed the 37 **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** premises of his unit with dust proof net. It was only after the above works have been undertaken and found to be effective, that the consent to operate Ext.P10 was granted. According to Sri M.Ajay, who appears for the Pollution Control Board, periodic monitoring of the unit is being done. If at any time it is found that there is pollution from the working of the factory, necessary directions for adopting effective remedial measures would be issued. The renewal of licence for the unit of the 1[st] respondent for the period ending 31.03.14 was issued in the above circumstances. 29. It is clear from the above that, the Pollution Control Board, the authority that is competent to evaluate whether the unit was causing nuisance, has assessed the situation and has found that the unit was not causing any pollution. The counsel appearing for the petitioner in the Writ Petitions have not pointed out any infirmity in the manner in which the assessment was conducted. Therefore, it is only appropriate that the assessment made by the **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 38 Pollution Control Board is accepted. The Pollution Control Board shall certainly be at liberty to conduct periodic monitoring of the unit and to take necessary action as and when pollution is detected. Until then, I find no grounds to interdict the functioning of the 1[st] respondent's unit. 30. As per Ext.P11 proceedings of the Panchayat dated 18.05.13, in W.P(c) No.16388 of 2013, the 1[st] respondent had been granted licence for the Financial Year 2013-14. Therefore, the 1[st] respondent is functioning his unit not only on the basis of the consent to operate that has been granted by the Pollution Control Board, but also on the strength of the Panchayat licence that has been issued, as noticed above. 31. The learned counsel for the 1[st] respondent Sri S.Subhashchand has handed over to me Order No. PCB/HO/KTM/COMP/13857/12 dated 25.11.2013, of the Kerala State Pollution Control Board, by which, a complaint made by the petitioner has been disposed of finding that there were no grounds to order stoppage of functioning of **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 39 the 1[st] respondent's unit. It has been assured in the said order that periodic monitoring of the unit would be conducted and action would be taken as and when any infraction is noted. 32. Sri S.Subhashchand, the learned counsel for the 1[st] respondent has taken strong exception to the conduct of the petitioner in instituting proceedings one after another before this Court without disclosing the pendency of the earlier proceedings initiated by him. It is pointed out that the present case, W.P(c) No.22385 of 2012 has been instituted through one counsel and thereafter, W.P(c) No.16388 of 2013 has been instituted through another counsel. It is pointed out that the petitioner had earlier filed W.P(c) No.25686 of 2011 that was later on withdrawn as per Ext.R1(m) judgment. He had also filed in W.P(c) No.9760 of 2013 a Review Petition for review of the judgment in this case, R.P.No.363 of 2013, which is pending. Therefore it is contended that the petitioner is guilty of abuse of the process of Court. **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 40 33. It is no doubt true that the conduct of the petitioner cannot be stated to be above board in view of the number of proceedings that he has instituted before this Court as well as other authorities. However, since I have considered the issues on the merits, I refrain from making any further observations on this aspect. 34. The Review Petition that has been filed by the 1[st] respondent seeking review of the judgment dated 08.04.2013 in W.P(c) No.9760 of 2013 is infructuous. The 1[st] respondent having been granted licence by the Panchayat up to 31.03.14, no further orders are necessary to be passed in the matter. Therefore, Review Petition, R.P.No.363 of 2013 has become infructuous. 33. For the foregoing reasons, these petitions are ordered as follows: i) R.P.No.363 of 2013 is dismissed as infructuous; ii) The 3[rd] respondent is directed to conduct an inspection of the Hollow Bricks Manufacturing Unit of the **W.P(c) Nos.22385 of 2012-W, 16388 of 2013-W and R.P.No.363 of 2013-T in W.P(c) No.9760 of 2013** 41 1[st] respondent to ascertain the capacities of the various items of machinery installed therein and, if any machinery in excess of a total capacity of 10.5 HP is being used, to issue necessary directions to ensure that use of such machinery is discontinued, until permission to use such machinery is granted by the competent authority. Orders in this regard shall be issued as expeditiously as possible and, at any rate within a period of one month of the date of receipt of a copy of this judgment; iii) The 4[th] respondent shall conduct periodic inspections of the 1[st] respondent's unit to monitor the functioning thereof, as required by the laws relating to pollution control and shall take necessary action, whenever it is found that the unit is causing pollution; iv) W.P(c) Nos.22385 of 2012 and 16388 of 2013 are disposed of with the above directions. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/